Where’s the injustice?

Lesson to lawyers with aspirations to solve the justice system’s flaws: be sure you pick the right battlefield on which to fight.

One lawyer last week irked Michigan Supreme Court Justice Elizabeth A. Weaver when he argued on application the injustice of his client’s sentence. In People v Kade, Bernard Kade had pleaded guilty to third-degree fleeing and eluding and was informed by his lawyer that the maximum sentence would be five years.

However, Kade was a habitual offender, having been convicted twice of operating under the influence, and he was sentenced to a minimum of two years, six months, and a maximum of 10 years. The trial court denied his motion to withdraw his plea.

Attorney Dana B. Carron said that he should have been informed of his maximum possible sentence as required by MCR 6.302(B)(2).

Kade served 30 months, and by the time Carron was in front of the Michigan Supreme Court, Kade was actually out of prison and was sitting in the courtroom.

And that made Justice Stephen J. Markman ask, “Why isn’t this case moot? … Is it his intent to withdraw his plea?”

Carron said it won’t be moot until his client is released from parole.

“He’s willing to take the potential punishment in order to gain for everyone else,” Carron said.

Carron said that in his line of work he’s seen hundreds of defendants charged as habitual offenders, and the judge almost always enhances their sentences, so they should be made aware of that during the plea negotiations.

Justice Robert P. Young asked why Kade’s attorney didn’t just tell him as much.

The best a judge could do before sentencing is give an “indeterminate ‘something really bad could happen to you'” warning about habitual offender sentencing enhancements, Young said.

And allowing defendants to withdraw their pleas at sentencing would create havoc in plea negotiations, said Prosecuting Attorney Marilyn J. Day.

“The only problem with allowing the withdrawal of a plea … now you’re at sentencing,” Day said. “The prosecutor is in a bit of a bind because they were relying on that plea.”

Still, she added, that bind is better than defendants appealing after the fact.

“What’s the problem here? Where’s the injustice?” Weaver asked. “You have given us not one bit of reason but intellectual theorizing in the future.

“If you want to argue about other cases in the future … when that case comes maybe we’ll here it.
That’s where I am. You’ll have to convince the rest of these people to take this case.”

She said she simply couldn’t find one reason  that the court should grant Kade any relief.

“Is it really unjust,” she asked, “that he might have to behave himself” for the duration of his probation.

He only has to behave until September, Day noted. That’s when he’ll be discharged from parole.